Negligence is a complex legal test

Far too often I am presented with stories of horror, pain and devastation relating to medical procedures gone wrong.

The following story was recently conveyed to me and it went like this: “I went in for standard surgery to fix an old age problem which was not really worrying me but was causing me some inconvenience. I trusted the surgeon implicitly. I came out of surgery and was told that the surgeon had to sacrifice my uterus, cervix and ovaries because he felt it was necessary. I am devastated. What can I do?”

Although the above is an extreme example, it is understandable that in the forefront of most people’s minds is what the legal recourse may be.

The law is clear that a treating practitioner (usually a doctor) owes a patient a duty of care arising out of that fact alone. This duty is, put simply, to “exercise reasonable skill and judgment”.

The first step that needs to be proven in any case is that the treater was negligent. This is a complex test and must be determined by applying legal standards.

Experts assist with medical analysis and the identification of what went wrong.

If negligence can be proven, then a person can claim compensation for their loss.

A person may be able to claim:

Pain and suffering compensation.

Past and future out-of- pocket expenses, including for medical expenses.

Past loss of income and the expected loss of earnings in the future.

The need for personal care and domestic assistance

With the introduction of legislation in 2002, the threshold for obtaining pain and suffering compensation in personal injury matters became significantly limited.

A litigant now has to achieve a threshold of at least 15 per cent whole person impairment in order to claim for their pain and suffering. The test is arbitrary and the application of this percentage to a person’s life circumstances can be subjective.

Currently, the maximum payable for pain and suffering in this State for a most extreme case is $605,000. Everyone else falls somewhere in the middle.

Assessing the impact of one’s injury in monetary terms often rest in the hands of one adjudicator so every legal case must be well prepared.